Avini Health Corporation v. BioGenus LLC

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-CV-61992-RAR

AVINI HEALTH CORPORATION,

Plaintiff,

v.

BIOGENUS LLC,

Defendant.

____________________________________/

ORDER GRANTING IN PART PLAINTIFF’S

MOTION FOR DEFAULT FINAL JUDGMENT

THIS CAUSE comes before the Court upon Plaintiff Avini Health Corporation’s Renewed

Motion for Default Final Judgment (“Motion”), [ECF No. 70], filed on April 19, 2024. Having

carefully reviewed the Motion, the record, and being otherwise fully advised, it is hereby

ORDERED AND ADJUDGED that the Motion, [ECF No. 70], is GRANTED IN PART

as set forth herein. In accordance with Fed. R. Civ. P. 58(a), final judgment shall be entered

separately in favor of Plaintiff as to the sole count in the First Amended Complaint (“FAC”), [ECF

No. 18].

BACKGROUND1

A. Factual Background

Plaintiff Avini Health Corporation (“Avini”) filed a Complaint on October 25, 2022

naming as Defendant Biogenus LLC (“Biogenus”). See generally Complaint, [ECF No. 1]. On

January 17, 2023, Avini subsequently filed a First Amended Complaint (“FAC”), [ECF No. 18].

1 The factual background is taken from Plaintiff’s FAC, the Motion, the Declaration of Neil Roth (“Roth

Declaration”), [ECF No. 70-1], and the April 19, 2024 Declaration of Daniel DeSouza (“DeSouza Decl.”),

[ECF No. 70-2]. Mr. Roth (“Roth”) is the CEO and President of Plaintiff Avini Health Corporation. Roth

Decl. ¶ 2. Attorney Daniel DeSouza (“DeSouza”) is the sole shareholder of the law firm DeSouza Law,

breaches of a Production and Supply Agreement (“Agreement”), [ECF No. 18] at 11–18, between

Plaintiff and Defendant. See generally FAC. Plaintiff operates on an affiliate marketing model

and generally sells branded products for detoxification, immune system support, and over-the-

counter pain relievers. FAC ¶ 6. Defendant is in the business of manufacturing, sourcing,

contracting, packaging, and providing other miscellaneous services related to the production of

products for its customers and clients. FAC ¶ 7. On or about March 1, 2022—Plaintiff as client

and Defendant as manufacturer—entered into an Agreement whereby Defendant agreed to produce

and/or manufacture certain products as per the terms and conditions specified in the Agreement.

FAC ¶ 8. The specific product contemplated by the Agreement was spherical silver nanoparticles

in deionized water. FAC ¶ 9. The Agreement further provided that Plaintiff had a right of first

refusal for any and all new products developed by Defendant:

Future Products and Product Development. In addition,

Manufacturer shall grant Avini Health Corporation the right of first

refusal for any and all new products (the “New Products”) for

consideration in the Territory through the Authorized Channel of

Trade. Avini Health Corporation will be given a maximum period

of thirty (30) days to review the New Products before other potential

customers are solicited. If New Products are accepted for

distribution by the Client, an Amended Production and Supply

Agreement will be created.

FAC ¶ 10; Agreement at 12. As alleged in the FAC, the right of first refusal was material to

Plaintiff’s entry into the Agreement, and it was specifically discussed with Biogenus’s principal,

Mr. Gary Samuelson (“Samuelson”), prior to the Agreement’s execution. FAC ¶ 11. According

to the FAC, prior to the parties entering into the Agreement, Samuelson had represented to Plaintiff

that he was instrumental in the development of the “REDOX Cell Signaling Supplement” for

ASEA, a privately owned international direct selling and multi-level marketing company

headquartered in Utah. FAC ¶ 12. The FAC further alleges that Mr. Samuelson further represented

REDOX product. FAC ¶ 14. Plaintiff estimated that ASEA does approximately $180 million in

sales of, and $60 million in profit for, the REDOX product on an annual basis. FAC ¶ 15. Around

the time the parties executed the Agreement, Mr. Samuelson represented to Plaintiff that he was

working on a new version of the REDOX product that he helped formulate and that this newer

version was supposed to work in a 2 oz. concentrated spray, making it superior to ASEA’s product,

which was sold in a 32 oz. bottle. FAC ¶ 16. According to the FAC, Mr. Samuelson specifically

stated to Plaintiff that once his product was fully developed, it would be offered to Plaintiff under

the terms of their existing Agreement. See FAC ¶ 17.

On July 8, 2022, Mr. Samuelson and his wife Iris attended a dinner for Plaintiff’s

distributors and affiliates. FAC ¶ 20. At the dinner, Plaintiff alleges that Mr. Samuelson and his

wife were seen coming from and going to their car and selling and giving out bottles of Defendant’s

new REDOX product to Plaintiff’s distributors and affiliates. FAC ¶ 21. Prior to this however,

Mr. Samuelson had represented to Plaintiff that the product was not yet ready. See FAC ¶ 21. Mr.

Samuelson and his wife also made multiple representations at the dinner that the product would

soon be offered by Plaintiff for distribution. FAC ¶ 21. The next day, on July 9, 2022, Plaintiff

held a regional meeting with its distributors and affiliates in West Jordan, Utah. FAC ¶ 18. After

the meeting, Plaintiff’s representatives met Mr. Samuelson in a hotel room, where Mr. Samuelson

stated that he did not yet have the newer REDOX product ready for distribution. FAC ¶ 19.

According to the FAC, Mr. Samuelson had repeated this statement several times since the parties

executed the Agreement on March 1, 2022 until the July 9, 2022 meeting. See FAC ¶ 19. These

representations were contrary to the statements made to Plaintiff’s distributors and affiliates at the

July 8, 2022 dinner. FAC ¶ 21.

Utah and told Plaintiff’s distributors that Samuelson had the improved REDOX product ready for

sale and that the present guests could buy a bottle for $25 each. FAC ¶ 22. Mr. Samuelson also

stated this price would be much lower than the price for which Plaintiff would later sell the product.

FAC ¶ 22. Both at this dinner and subsequently, Defendant did in fact sell multiple bottles of his

new improved REDOX product to multiple Plaintiff’s distributors at $25 each. FAC ¶ 23. The

FAC also alleges that several distributors confirmed these sales. FAC ¶ 23. As of filing the FAC

on January 17, 2023, Plaintiff claims Defendant has continued to refuse to sell its new and

improved REDOX product to Plaintiff notwithstanding Defendant’s contractual obligations and

specific promises to do so. FAC ¶ 24. Moreover, Plaintiff specifically confronted Defendant via

its principal, Mr. Samuelson, concerning why Defendant was not supplying Plaintiff with its new

REDOX product. FAC ¶ 25. Samuelson responded that he wanted Defendant to be the exclusive

seller/supplier of the new product. FAC ¶ 25.

In addition to refusing to sell the new and improved REDOX product to Plaintiff, Plaintiff

also alleges that Defendant further breached the parties’ Agreement by supplying poor quality

nano-silver product. FAC ¶ 26. Specifically, Plaintiff alleges that Defendant had agreed, as part

of the parties’ dealings, to supply Plaintiff silver product in 5-gallon tubs. FAC ¶ 27. Defendant

had provided written specifications before supplying the silver product, specifications indicating

the product was supposed to be yellow in color and have 40 ppm of silver per bottle. FAC ¶ 27.

Relatedly, the Agreement references Nutra Pharma Corporation (“Nutra Pharma”) in

various provisions. FAC ¶ 28. Prior to entering into the Agreement, Plaintiff and Defendant

agreed that purchase orders for the nano-silver product would be made by Nutra Pharma on

Plaintiff’s behalf. See FAC ¶ 29. As discussed, and agreed by the parties, Plaintiff and Nutra

Pharma maintained a business relationship whereby Nutra Pharma was to receive the silver product

then ship the product to Plaintiff’s customers and distributors upon completion of an order. FAC

¶ 30. Thus, Nutra Pharma was to function effectively as a drop-shipper for Plaintiff’s orders. FAC

¶ 30.

In early February 2022, before the execution of the Agreement, Plaintiff submitted a

purchase order to Defendant for 19 5-gallon tubs of silver product. FAC ¶ 31. Notably, Samuelson

had indicated that the nano-silver product was supposed to be yellow in color and that a clear

product indicated the silver had fallen out of its correct 7 nano sizing. FAC ¶ 32. The first order

of nano-silver was yellow in color as Samuelson had indicated was proper. FAC ¶ 32.

Accordingly, Plaintiff accepted the nano-silver and the accompanying Certificate of Accreditation

sent by Defendant. FAC. ¶ 33. On March 30, 2022, Defendant emailed an invoice for the first

shipment of silver product to Neil Roth (Plaintiff’s President and Chief Executive Officer) and Rik

Deitsch (Nutra Pharma’s Chief Executive Officer). FAC ¶ 34. The invoice read as follows:

“Please find the attached invoice. It is great being in business with you.” FAC ¶ 34. Plaintiff

subsequently paid the invoice via wire transfer to Defendant. FAC ¶ 35.

On or about May 5, 2022, after the Agreement had been signed, Plaintiff submitted,

through Nutra Pharma, its first formal Purchase Order pursuant to the Agreement. See FAC ¶ 36

(emphasis in original). Defendant confirmed with Plaintiff that the purchase order was to follow

the terms of the Agreement and conform with Defendant’s specifications for the silver product.

FAC ¶ 37. As with the first order, the product was shipped to Nutra Pharma for packaging and

shipping to Plaintiff’s customers and distributors but paid for by Plaintiff. FAC ¶ 38. And as with

the first shipment, Defendant emailed the invoice for the second shipment to both Neil Roth and

Rik Deitsch, as reflected in a May 26, 2022 email: “Attached is the invoice and shipping

information for 20 Containers of Silver Nanoparticles. It should arrive on Wednesday. It is being

began to turn clear almost immediately after Plaintiff received it, which Plaintiff claims indicated

a major instability in the product. FAC ¶ 40. Plaintiff tested the product and discovered there was

less than 1 ppm of silver per bottle, far below the specified 40 ppm per bottle as indicated in

Defendant’s Certificate of Accreditation. FAC ¶ 41.

As a result, Plaintiff was required to pull back 496 packaged bottles in addition to

approximately 15 of the mostly unopened tubs. FAC ¶ 42. This cost Plaintiff $21,000.00 in out-

of-pocket costs and approximately $217,000.00 in lost sales during the 2022 calendar year. FAC

¶ 43. Plaintiff could not source replacement silver product for a period of several months and

incurred lost sales in the amount of approximately $217,000 (retail of $75.00 per unit multiplied

by 2,900 units). FAC ¶ 43; Roth Decl. ¶ 41. This resulted in around $184,000.00 in lost profits for

Plaintiff. Roth Decl. ¶ 41. Plaintiff had buyers for the nano-silver product who had committed to

purchase the aforementioned 2,900 units at the $75.00 retail price. Roth Decl. ¶ 42. Plaintiff could

not fulfill those orders due to Defendant’s failure to provide conforming nano-silver product and

had to obtain replacement product months after-the-fact, thereby losing the sales it had originally

lined up. Roth Decl. ¶ 42.

As a result of both Defendant’s refusal to offer the new improved REDOX product and the

poor quality of the supplied silver product, on August 4, 2022, Plaintiff sent a notice of default to

Defendant. FAC ¶ 44. The parties were unable to resolve the dispute, and according to the FAC,

Defendant continues to refuse to supply the new improved REDOX product and has not taken

responsibility for the poor quality of the applied silver product. FAC ¶ 45. Plaintiff, by its

Complaint, asserts through its action that Defendant’s breach of the Agreement between Avini and

Biogenus caused Avini damages for which Avini is entitled to relief. See FAC ¶¶ 47–56.

As noted above, Plaintiff initiated this action on October 25, 2022 by filing the Complaint,

[ECF No. 1]. Pursuant to Fed. R. Civ. P. 4, Defendant was timely served with a summons and a

copy of the Complaint on November 12, 2022. See Proof of Service, [ECF. No. 4]. On January

17, 2023, Plaintiff filed the FAC. See [ECF No. 18]. On January 31, 2023, Defendant filed a

Motion to Dismiss the FAC, [ECF No. 26], which the Court denied on March 17, 2023, [ECF No.

36]. On March 31, 2023, Defendant filed an Answer and Affirmative Defenses to the FAC along

with a Counterclaim against Plaintiff. [ECF No. 37]. On October 31, 2023, counsel for Defendant

filed a Motion to Withdraw as Counsel (“Motion to Withdraw”). See [ECF No. 59]. The Court

granted the motion on the same day and set a November 30, 2023 deadline for Defendant to obtain

new counsel (“Withdrawal Order”). See [ECF No. 61] at 2. Withdrawing counsel further certified

service upon the Defendant of the Court’s Order granting the Motion to Withdraw. See [ECF No.

62].

Defendant failed to timely comply with the deadline to obtain new counsel and otherwise

ceased to defend itself in this action. Accordingly, on December 5, 2023, the Court entered an

Order Directing Clerk to Enter Default, Requiring Motion for Default Final Judgment, and

Dismissing Defendant’s Amended Counterclaim against Plaintiff (“Order”), [ECF No. 65]. The

Order dismissed Defendant’s Amended Counterclaim and struck Defendant’s Answer and

Affirmative Defenses for failure to comply with the Court’s October 31, 2023 Withdrawal Order.

See generally Order. The Order also directed the Clerk to enter a Clerk’s Default against

Defendant and directed Plaintiff to file a Motion for Default Final Judgment within 10 days of the

Clerk’s Entry of Default. See Order at 2–3. The Clerk accordingly entered a Clerk’s Default

against Defendant the same day. See [ECF No. 66]. On December 14, 2023, Plaintiff timely filed

a Motion for Default Judgment. [ECF No. 67].

Judgment without prejudice because of its failure to comply with the specific directives in the

Order. [ECF No. 68]. Specifically, the Court determined that Plaintiff had failed to adequately

comply with the Court’s December 5, 2023 Order by (1) failing to provide legal support concerning

why it is entitled to reasonable attorneys’ fees and costs; (2) failing to provide legal support

warranting its requested award of compensatory damages alongside both a preliminary injunction

and specific performance; (3) failing to differentiate between the respective purposes of the

preliminary injunction and specific performance it requests; and (4) failing to provide the proper

accounting required to adjust the equities between the parties where both specific performance and

breach of contract damages are to be awarded. See id. On April 19, 2024, Avini timely filed a

Renewed Motion for Default Final Judgment Against Defendant. [ECF No. 70]. The Court now

turns to that Motion.

LEGAL STANDARD

A party may apply to the court for a default judgment when the defendant fails to timely

respond to a pleading. Fed. R. Civ. P. 55(b)(2). “A defendant, by his default, admits the plaintiff’s

well-pleaded allegations of fact, is concluded on those facts by the judgment, and is barred from

contesting on appeal the facts thus established.” Eagle Hosp. Physicians, LLC v. SRG Consulting,

Inc., 561 F.3d 1298, 1307 (11th Cir. 2009) (cleaned up) (quoting Nishimatsu Const. Co. v. Houston

Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)). However, conclusions of law are to be

determined by the court. See Mierzwicki v. CAB Asset Mgmt., LLC, No. 14-61998, 2014 WL

12488533, at *1 (S.D. Fla. Dec. 30, 2014). Therefore, a court may enter a default judgment only

if there is a “sufficient basis to state a claim.” Id.

“Rule 55 of the Federal Rules of Civil Procedure establishes a two-step procedure for

obtaining default judgment.” Federated Life Ins. Co. v. Fifth Third Bank, No. 2:14-cv-568-FtM-

38CM, 2015 WL 859393, at *1 (M.D. Fla. Feb. 27, 2015). First, the clerk of the court must enter

a clerk’s default against a defendant that fails to plead or otherwise defend a lawsuit. Id.; see Fed.

R. Civ. P. 55(a). Second, after receiving the clerk’s default, the court can enter a default judgment

provided the defendant is not an infant or incompetent. Id.; Fed. R. Civ. P. 55(b)(2); see also

Solaroll Shade & Shutter, Inc. v. Bio–Energy Sys., Inc., 803 F.2d 1130, 1134 (11th Cir. 1986)

(stating a default judgment may be entered “against a defendant who never appears or answers a

complaint, for in such circumstances the case never has been placed at issue”). But “a[n] entry of

a clerk’s default does not per se warrant an entry of default judgment. Rather, a court may enter a

default judgment only if ‘the well-pleaded allegations in the complaint, which are taken as true

due to the default, actually state a substantive cause of action and that there is a substantive,

sufficient basis in the pleadings for the particular relief sought.’” Federated Life, 2015 WL 859393,

at *2 (quoting Tyco Fire & Sec., LLC v. Alcocer, 218 F. App’x 860, 863 (11th Cir. 2007)).

A. The Clerk’s Entry of Default

Both requirements of the two-step procedure explained above are clearly met here, as

explained below. As to whether there was a valid Clerk’s Entry of Default, Defendant’s apparent

abandonment of its desire to defend further against this lawsuit is confirmed by Defendant’s failure

to respond to the Court’s October 31, 2023 Withdrawal Order after withdrawing counsel properly

served it upon Defendant. See [ECF No. 62]. Second, Defendant is not a minor or incompetent;

thus, the restrictions set forth in Rule 55(b)(2) do not apply. Third, as a Utah limited liability

company rather than an individual, Defendant cannot be in the military service of the United States

nor any of its allies. Thus, the requirements of the Servicemembers Civil Relief Act, 50 U.S.C. §

Default against Defendant on December 4, 2023. See [ECF No. 66].

B. The Sufficiency of the FAC’s Allegations and Requested Relief

But that is not the last step on the circuitous path to final default judgment. As mentioned

above, “a court may enter a default judgment only if the well-pleaded allegations in the complaint,

which are taken as true due to the default, actually state a substantive cause of action and that there

is a substantive, sufficient basis in the pleadings for the particular relief sought.” Federated Life,

2015 WL 859393, at *2 (cleaned up). As discussed below, the FAC adequately states a cause of

action for breach of contract.

1. Breach of Contract

In the FAC, Plaintiff adequately states a cause of action against Defendant as to its single

count for breach of contract. See FAC ¶¶ 47–56. As a threshold matter, the Court notes that the

parties’ Agreement specifies that Florida law governs in the event of an action to enforce or

interpret it. Agreement ¶ 22. And to state “a breach of contract claim, Florida law requires the

plaintiff to plead and establish: (1) the existence of a contract; (2) a material breach of that contract;

and (3) damages resulting from the breach.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1272

(11th Cir. 2009) (citing Friedman v. N.Y. Life Ins. Co., 985 So. 2d 56, 58 (Fla. 4th DCA 2008)).

Here, Plaintiff alleges—and Defendant admits by way of its default—that: (1) a valid

contract exists between the parties; (2) Defendant’s breach was material; (3) and Plaintiff suffered

damages as a result of Defendant’s breach. FAC ¶¶ 8, 10–11, 17–30, 40–46, 48–56. Specifically,

Defendant is deemed to have admitted the following facts by its default: (1) on or about March 1,

2022, Plaintiff and Defendant entered into a valid and binding Agreement whereby Defendant

agreed to produce and/or manufacture certain products on the terms and conditions specified

therein; (2) “[t]he Agreement is a binding, enforceable contract existing between Plaintiff and

meeting agreed-upon specifications”; (4) “[t]he Agreement further requires Defendant to offer its

new/improved REDOX product to Plaintiff for purchase”; (5) “Defendant breached the Agreement

by supplying approximately $21,000.00 of nano-silver product that failed to meet Defendant’s

own specifications”; (6) “Defendant further breached the Agreement by failing to offer its

new/improved REDOX product to Plaintiff for purchase”; (7) “[a]s a direct and proximate result

of Defendant’s breaches of the Agreement, Plaintiff suffered substantial damages”; (8) “Plaintiff’s

supply of non-conforming nano-silver product has caused Plaintiff to incur $21,000.00 in direct

damages and $217,000.00 in lost sales (amounting to > $184,000.00 in lost profits)”; and (9)

“Defendant’s breaches of Agreement are ongoing and have already caused and will continue to

cause irreparable harm to Plaintiff.” FAC ¶¶ 8, 48, 50–55.

In summary, then, Plaintiff alleges breaches of two of the Agreement’s provisions—

Section 12, which required Defendant to supply nano-silver product in accordance with the

specifications agreed by the parties, and Section 7, which provided Plaintiff a right of first refusal

for any and all new products developed by Defendant. See Mot. at 12. Based on the above facts,

all of which Defendant admits as a result of its default, the Court finds that there is sufficient basis

in the FAC for compensatory damages.

2. Remedies

a. Specific Performance

By its Motion, Plaintiff seeks specific performance of Section 7 of the Agreement, which

provides for Plaintiff’s right of first refusal with respect to the new and improved REDOX product.

The equitable remedy of specific performance may be granted at the discretion of the Court when:

(1) “the plaintiff is clearly entitled to it,” (2) “there is no adequate remedy at law,” and (3) “the

judge believes justice requires it.” Boardwalk at Daytona Dev., LLC v. Paspalakis, 220 So. 3d

145, 148 (Fla. 3d DCA 2005)). “Florida law recognizes the right to enforce specifically a contract

only for the sale of real property or for such personal property that is of a unique character and

value, such as an antique. Barnes v. Diamond Aircraft Indus., Inc., 499 F. Supp. 2d 1311, 1319

(S.D. Fla. 2007) (citing Clements v. Leonard, 70 So. 2d 840, 842 (Fla. 1954); Mangus v. Porter,

276 So. 2d 250, 251 (Fla. 3d DCA 1973)). “Generally speaking, this right is not available for

contracts involving personal property where the good is commonly manufactured.” Id. (citing

DiabloSport, LLC v. Granatelli Motor Sports, Inc., No. 605CV312ORL31DAB, 2005 WL

2465019, at *2 (M.D. Fla. Oct. 6, 2005) (finding no specific performance where the plaintiff did

not allege that “a commonly available manufactured good” was unique or that its value was

difficult to calculate)).

The Court declines to award specific performance because Plaintiff has failed to adequately

demonstrate it lacks an adequate remedy at law. The Court arrives at this conclusion for three

separate reasons. First, Plaintiff has inadequately demonstrated that the REDOX product is in fact

unique such that specific performance is warranted. As noted above, specific performance is

generally only available where a good is “unique” and not for “contracts involving personal

property where the good is commonly manufactured.” Barnes, 499 F. Supp. 2d at 1319. Plaintiff’s

Motion claims that “Plaintiff cannot obtain the new/improved product elsewhere in the market as

Defendant exclusively controls the distribution of such.” Mot. at 15. The Court notes, however,

that the allegations contained in the FAC rather than the statements in Plaintiff’s Motion govern

the Court’s pleading-sufficiency-and-remedies analysis. And the FAC specifically contradicts

Plaintiff’s representation that the REDOX product is sufficiently unique to warrant specific

performance.

Samuelson represented that he had been working on a new version of the REDOX product that he

helped to formulate. The product was supposed to be a newer version that can work in a 2 oz

concentrated spray (ASEA’s product is sole [sic] in a 32 oz bottle) that was superior to the ASEA

product.” FAC ¶ 16 (emphasis added). The fact that Plaintiff considers Samuelson’s product to

be superior, even if true, does not, without more, make it unique. Indeed, the FAC all but confirms

that Samuelson’s product is not unique, as there is a comparable product on the market, namely,

ASEA’s product, which comes in the 32 oz bottle. See Barnes, 499 F. Supp. 2d at 1319 (refusing

to grant specific performance where “[Plaintiff] has not denied that other manufacturers are

currently producing similar aircraft in the ‘very light jet’ category.”). Thus, by Plaintiff’s own

allegations, there is evidently an alternative to Samuelson’s product on the market. Though

Plaintiff might prefer Defendant’s version of the product, and though it might indeed be improved

given its concentrated formula and smaller bottle, these facts are insufficient for the Court to

conclude that the product is sufficiently unique to warrant the extraordinary remedy of specific

performance. Accordingly, the Court cannot conclude that Plaintiff lacks an adequate remedy at

law to compensate it for Defendant’s breach of Section 7.

Second, and relatedly, although Plaintiff’s Motion claims that Plaintiff’s damages related

to Defendant’s breach of Section 7 are difficult to quantify, the Motion nonetheless states that

“Plaintiff adduced . . . that Defendant sold at least 200 bottles of the REDOX product to Plaintiff’s

own distributors at a price of $25.00/bottle, resulting in definitive damages of $5,000.00.” Mot.

at 13. Plaintiff has thus conceded an adequate remedy at law in the form of a reasonable damages

estimate resulting from the breach of Section 7. That Plaintiff would prefer the remedy of specific

performance does not alter the Court’s conclusion that such a remedy is unwarranted on the FAC’s

alleged facts. Thus, for this reason as well, the Court cannot conclude that there is no adequate

declines to grant specific performance for Defendant’s breach of Section 7.

b. Permanent Injunction

Plaintiff also requests from the Court a permanent injunction concerning Defendant’s

breach of the right-of-refusal provision in Section 7. Mot. at 15–17. Specifically, Plaintiff seeks

a permanent injunction against Defendant prohibiting it from selling, distributing, and

manufacturing any new product, including the REDOX product, without first offering Plaintiff a

right of first refusal. Mot. at 16. A plaintiff seeking an injunction must show: “(1) that it has

suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are

inadequate to compensate for that injury; (3) that, considering the balance of hardships between

the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would

not be disserved by a permanent injunction.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388,

391 (2006).

“Under Florida law, an injunction against the breach of a contract is a negative decree of

specific performance of the agreement, and the general rule in such cases is that the court’s power

to grant such relief is governed by the same rules that govern its power to grant an affirmative

decree of specific performance.” DiabloSport, LLC, 2005 WL 2465019, at *1 (citing Fla.Jur.2d

Specific Performance § 158 (2005)). Florida law recognizes the right to specifically enforce

certain contracts, such as contracts for the sale of real property. See Clements, 70 So. 2d at 842.

“Generally speaking, however, this right is not available for contracts involving personal property,

particularly where the court would be required to supervise performance of the contract.”

DiabloSport, LLC, 2005 WL 2465019, at *1 (citing Mayor’s Jewelers, Inc. v. State of Cal. Public

Employees’ Retirement System, Inc., 685 So. 2d 904, 905 (Fla. 4th DCA 1996)). “Because the

damages resulting from a breach are generally purely economic, the injured party possesses an

Mayor’s Jewelers, Inc., 685 So. 2d at 905). “However, where there is no adequate remedy at law,

and where the personal property is of a unique character and value, Florida courts will grant

specific performance of a contract involving personal property. Id. (citing Mangus, 276 So. 2d at

251 n.1).

The Court declines to issue a permanent injunction for several reasons. First, as explained

above, the Court has already determined that the product at issue is insufficiently unique such that

there is no adequate remedy at law. The same conclusion applies with equal force here. And while

Plaintiff’s Motion concedes that specific performance and a permanent injunction in the breach-

of-contract context are closely related, Mot. at 15–16, Plaintiff nonetheless claims “[t]he specific

performance sought by Plaintiff (that Defendant offer a right of first refusal to Plaintiff with respect

to new products) differs slightly from the injunctive relief sought by Plaintiff (that Defendant be

prohibited from selling, distributing, manufacturing any new product, including the REDOX

product, without first offering Plaintiff a right of first refusal). Mot. at 16.

Confusingly however, in the earlier section of Plaintiff’s Motion requesting specific

performance, Plaintiff states “[t]he Court should thus require specific performance of § 7 of the

Agreement, both with respect to Defendant’s REDOX product and any other ‘new’ product it has

developed or develops in the future.” Mot. at 15. This statement appears to directly contradict

Plaintiff’s proffered distinction between the two remedies in the section of Plaintiff’s Motion

requesting a permanent injunction. Though it remains unclear to the Court whether and how the

specific-performance and permanent-injunctive remedies Plaintiff requests are indeed distinct

given the Motion’s inconsistencies, in light of the Court’s conclusion that the REDOX product is

not sufficiently unique to warrant the extraordinary remedy of specific performance, the Court has

no trouble reaching the same conclusion in the permanent-injunction context that it did in the

adequate remedy at law: the $5,000.00 in damages Plaintiff estimates resulted from Defendant’s

breach of Section 7.

Second, Plaintiff’s briefing concerning its entitlement to a preliminary injunction is

woefully insufficient. For example, Plaintiff dedicates only half a page—just a part of one

paragraph—to arguing for a permanent injunction, a drastic and extraordinary form of relief that

requires burdensome supervision by the courts. Plaintiff dedicates just one sentence to each of the

required elements, e.g., “[t]he threatened injury outweighs any damages to Defendant given that

such injunctive relief only forces Defendant to comply with its contractual obligations.” Mot. at

16. Third, the Court notes that the Agreement was dated March 1, 2022 and was set to continue

for a period of two years unless renewed by the parties for an additional two years. See Agreement

¶ 1. Accordingly, the Agreement expired on March 1, 2024. Given the parties’ dispute, it seems

unlikely to the Court that the parties would have renewed their Agreement. Finally, this Motion

represents Plaintiff’s second failure to adequately justify its request for specific performance, a

permanent injunction, and compensatory damages. The Court already catalogued the First

Motion’s deficiencies and provided specific guidance to Plaintiff concerning the need to clarify

the contours and legal justification for the equitable relief sought in its Renewed Motion. See

[ECF No. 68]. Plaintiff has again failed to do so. Accordingly, Plaintiff’s request for a permanent

injunction is denied.

c. Compensatory Damages

i. Failure to Supply Conforming Nano-silver Product

Plaintiff seeks compensatory damages in the amount of $205,000.00. This total amount

consists of $21,000.00 paid by Plaintiff to Defendant for non-conforming goods (the nano-silver

product) and $184,000.00 in lost profits due to Defendant’s breach. FAC ¶ 54; Mot. at 12; Roth

Plaintiff is entitled to an award of $205,000.00 in compensatory damages with respect to

Defendant’s breach of Section 12 stemming from Defendant’s failure to supply conforming nano-

silver product.

ii. Failure to Offer First Right of Refusal

Plaintiff also includes a damages calculation of $5,000.00 related to Defendant’s breach of

Section 7 of the Agreement. Mot. at 13; Roth Decl. ¶ 20; see also FAC ¶¶ 22–23. Plaintiff’s

estimate is based on Plaintiff’s conclusion that Defendant sold at least 200 bottles of the REDOX

product to Plaintiff’s own distributors at a price of $25.00/bottle, resulting in definitive damages

of $5,000.00. Mot. at 13 (citing Roth Decl. ¶ 20). The Court accordingly awards $5,000.00 in

compensatory damages related to Defendant’s breach of Section 7 of the Agreement.

d. Costs and Attorneys’ Fees

Lastly, Plaintiff seeks an award of attorneys’ fees in the amount of $42,355.00 and costs in

the amount of $1,985.75 for a total cost and fees award of $44,340.75. As already noted, in support

of its request for fees and costs, Plaintiff has attached to its Motion a declaration from Plaintiff’s

attorney Daniel DeSouza of the law firm DeSouza Law, P.A. See DeSouza Decl. The declaration

is accompanied by timesheets describing the work performed, the time expended, and the costs

incurred. DeSouza Decl. at 7–14.

Under Florida law, “attorney’s fees may only be awarded by a court pursuant to an entitling

statute or an agreement of the parties.” Dade County v. Pena, 664 So. 2d 959, 960 (Fla. 1995).

The test to determine the prevailing party “is whether the party ‘succeeded on any significant issue

in litigation which achieves some of the benefit the parties sought in bringing the suit.’” Moritz v.

Hoyt Enters., Inc., 604 So. 2d 807, 809–10 (Fla. 1992) (alterations accepted) (quoting Hensley v.

Eckerhart, 461 U.S. 424, 433 (1983)).

attorneys’ fees and costs incurred in any suit brought to enforce the Agreement. Moreover, the

entry of default judgment against a defendant renders the Plaintiff the prevailing party. See Simon

v. Leaderscape, LLC, 565 F. Supp. 2d 1332, 1334 (S.D. Fla. 2008). The Court has reviewed the

declaration of Avini’s counsel filed together with the Motion and finds the attached declaration

adequately supports Plaintiff’s requested awards of attorneys’ fees and costs.

i. Costs

As to costs, the Court awards the Motion’s full request for $1,985.75 in taxable costs

against Defendant. Mot. at 6. These costs consist of the filing fee, service of the Complaint,

service of a subpoena, and deposition transcripts with respect to the depositions of Gary Samuelson

(Defendant’s principal), Douglas Dickey, and Erik Deitsch (both officers of Plaintiff whose

depositions were taken by Defendant). See Mot. at 6; DeSouza Decl. at 10–14.

ii. Attorneys’ Fees

As discussed above, the Court already concluded Plaintiff is entitled to attorneys’ fees

based upon Section 23 of the Agreement. The Court now considers the reasonableness of

Plaintiff’s requested fee amount and awards Plaintiff’s full attorneys’ fees request of $42,355.00.

The “starting point for determining the amount of a reasonable fee is the number of hours

reasonably expended on the litigation multiplied by a reasonable hourly rate,” known as the

lodestar figure. Hensley, 461 U.S. at 433. “A reasonable hourly rate is the prevailing market rate

in the relevant legal community for similar services by lawyers of reasonably comparable skills,

experience, and reputation.” Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1299

(11th Cir. 1988). To determine the prevailing market rate, courts often consider “the attorney’s

customary fee, the skill required to perform the legal services, the attorney’s experience, reputation

and ability, the time constraints involved, preclusion of other employment, contingency, the

Mallory v. Harkness, 923 F. Supp. 1546, 1555 (S.D. Fla. 1996). The party seeking an award of

fees bears the burden of documenting and substantiating the number of hours and hourly rate. See

Hensley, 461 U.S. at 433.

The Court has performed the lodestar analysis and finds the requested fee amount here to

be reasonable. Specifically, the Court finds that Plaintiff’s counsel reasonably expended 94.7

hours in connection with pursuing this matter. The Court further finds that $450.00 is a reasonable

hourly rate for Plaintiff’s counsel, Daniel DeSouza, given the relative complexity of the matter,

the results obtained, and the experience of Plaintiff’s counsel. See, e.g., Afford. Aerial

Photography, Inc. v. Elegance Transportation, Inc., No. 6:21-CV-1166-CEM-LHP, 2022 WL

2306182, at *12 (M.D. Fla. Feb. 23, 2022), adopted by, 2022 WL 2306516 (M.D. Fla. Mar. 14,

2022) (finding Plaintiff’s counsel’s $450.00/hour rate reasonable); Shelton v. Liberty Mut. Fire

Ins. Co., No. 8:12-CV-2064-T-30AEP, 2014 WL 631886, at *3 (M.D. Fla. Feb. 18, 2014) (finding

$425.00 per hour reasonable for AV-rated lead attorney who “has been practicing for nearly 17

years”); ADT LLC, v. Security Networks, LLC, No. 12-81120, 2018 WL 1796269, at *9 (S.D. Fla.

Jan. 11, 2018) (finding rates of $425.00–$440.00 per hour reasonable for attorney with over 15

years’ experience, admitted to multiple states, and who practices complex commercial litigation);

Bork v. Tran Huong Quynh, No. 2:19-CV-354FTM38MRM, 2020 WL 6366189, at *2 (M.D. Fla.

Oct. 14, 2020) (hourly rate of $450.00 per hour reasonable for 10-year attorney).

Accordingly, the Court awards Plaintiff attorneys’ fees in the amount of $42,355.00.

CONCLUSION

For the foregoing reasons, Plaintiff is entitled to the entry of default final judgment.

Accordingly, it is hereby ORDERED AND ADJUDGED as follows:

1. Plaintiff's Motion for Default Final Judgment, [ECF No. 70], is GRANTED IN

PART. Default Final Judgment shall be entered by separate order.

2. Plaintiff shall recover from Defendant $249,340.75, consisting of $205,000.00 in

compensatory damages, $1,985.75 in costs, and $42,355.00 in attorneys’ fees.

DONE AND ORDERED in Miami, Florida this 1st day of July, 2024.

SbOLFO A. RUIZ II

UNITED STATES DISTRICT JUDGE

Page 20 of 20